STATE OF HIMACHAL PRADESH Vs. RAJESH KUMAR

JUDGEMENT

(1.) THE present criminal appeal has come up for consideration after the leave to appeal has been granted under Section 378(3) of the Code of Criminal Procedure, in reference to judgment dated 16.5.2002 passed by learned Sessions Judge, Kula, HP in Sessions Trial No. 95/2001, thereby acquitting the Respondents/accused for the offence under Section 20 of Narcotic Drugs and Psychotropic Substances Act, 1985 (in short called 'NDPS Act ')

(2.) THE prosecution case, in brief, is that ASI Kantar Singh (PW -11), accompanied by LHC Tara Chan (PW -8), Constable Chan Parkas (PW -2) and constable Krishna All (PW -1), while investigating the case, received information that two young boys wearing suits, traveling on bus bearing No. HP - 33 -6075 was carrying 'Chakras '. Such information was reduced in writing and sent through PW1 Krishna All constable to the S.P. Office, Kula. S.P. Kula endorsed the same and handed over to PW -3 Alma Girl. Police party reached Abjure Check post at 11.35 IS, stopped the bus and two boys were noticed sitting in the back seat. Both were taken out of the bus and on obtaining their consent as to whether they want to be searched by a Gazette Officer or Magistrate, both of them consented to be searched by the police. On obtaining their consent, personal search was made. Accused/Respondent/Rajesh Kumar was found having concealed a polythene packet under his pant towards back side, which was containing 'Chakras ' in the shape of sticks. The 'Chakras was weighed and found 750 grams, out of which 25 grams each were separated. Samples were packed and sealed and balance 700 grams 'Chakras ' were also sealed in separate packet. All the packets were affixed six seal impression of seal 'H '. Search of another accused/Respondent Amit Kumar was conducted and from the front portion under his belt a polythene packet containing 'Charas ' was taken out from which 'Charas ' of 750 grams was recovered. Two samples of 25 grams each were taken and sealed with the same seal by affixing six seal impression 'H '. 'NCB Form ' in triplicate was filled up Sample was sent for Chemical examiner. The case property was deposited with MHC Bhagat Ram, who made entry Ex PW -4/A in, Malkhana register. Two sealed packets were sent to CTL, Kandaghat through constable Amar Singh. Keeping in view the chemical examiner report and investigation, Respondents were charged for the aforesaid offences.

(3.) TWO independent witnesses (PW -6), Jagu Ram and (PW -7) Bhupinder Sharma, forest officials, since have not supported the case to the expectation of the prosecution, as such, they were declared hostile. (PW -10) Devinder Kumar, the conductor of the bus in question, stated that two persons were taken out from the bus by the police and thereafter bus was permitted to go towards Mandi side and he went with the bus to Mandi. PW -10, however, denied recovery of 'Charas ' in cross -examination. Constable Tara Chand/(PW -8) and ASI Kanwar Singh/ (PW -11) have spoken about the recovery of 'Charas '. PW -11/ASI Kanwar Singh, the Investigating Officer, in his endeavour to support the prosecution case has reiterated the prosecution version. In his statement, PW -11 did not divulge that from which place/shop the weights and measurement were arranged and which particular seal was put on the samples. Nothing is known as to where the sample was deposited in Malkhana, where 'NCB Form ' Ex PW -11/A was filled up, whether resealing was made on the two samples sealed with seal 'H ', who took out samples to CTL, Kandaghat. In the absence of proper facsimile seal on 'NCB Form ', it is difficult to know that which sample was recovered and sealed on the fateful day. After receiving of chemical examination report, it is also difficult to know whether the report was pertaining to the same contraband good which was recovered and sealed on the said date.